The Draft Scotland Bill would insert into the Scotland Act 1998 a new section 1(1A) providing that:

A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements.

Elliott argues that it is unclear whether “any provision purporting to make the Scottish Parliament permanent would be worth the paper upon which it was printed” due to the doctrine of Parliamentary sovereignty, the absoluteness of which he sees as having been confirmed by LJ Laws in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151: “Being sovereign, [the UK Parliament] cannot abandon its sovereignty.” Elliott believes that given Parliamentary sovereignty, the provision would “lack any legal effect whatever” and that “its consequences are likely to be entirely symbolic.”

Disagreeing somewhat with Elliott, Kenneth Campbell QC does not believe that one can dismiss the legal effects of the proposed legislation so easily, given recent UK Supreme Court rulings. On one important level, this disagreement hinges on the rule of recognition governing how legal rules are recognised within a state. Campbell is right to highlight that in the UK, our rule of recognition is that “whatever the Queen-in-Parliament enacts is law.” It follows, says Campbell, that if this is correct, then the proposed changes should be expected to have legal effects. Here, Campbell suggests that rulings of the UK Supreme Court since devolution may now be pointing towards a tentative recognition that Parliamentary sovereignty may be becoming more limited in a domestic context, quite apart from the already understood and accepted limits imposed by the effects of EU law and the Human Rights Act 1998.

Campbell writes:

“Judicial recognition of constitutional statutes since Thoburn v Sunderland City Council[2002] EWHC 195(admin) [2003] QB 151 has been cautious, but has been affirmed by the Supreme Court, and specifically in the context of devolution: BH v Lord Advocate [2012] UKSC 24; 2012 SC(UKSC) 308, per Lord Hope para 30. Likewise, again in devolution case-law before the Supreme Court, Lord Hope expressly left open the question of whether the supremacy of the UK Parliament is absolute or may be subject to limitation in exceptional circumstances:AXA General Insurance v Lord Advocate [2011] UKSC 46; 2012 SC(UKSC) 122, paras 50 & 51.”

Concluding, Campbell argues that:

“Taking the Supreme Court case-law together with the ‘Scotland clauses’, I suggest that a definite and entirely domestic boundary of Parliamentary supremacy is emerging. That is the meaning and intent of these clauses of the Scotland Bill.”

The interesting aspect of the divergence of views, as I see it, is between Elliott’s theoretical distinction between political (or symbolic) effects and legal effects on the one hand, and on the other, Campbell’s belief as a practising advocate and barrister that what constitutes legal effects must also include (a) legislative intent, (b) how the highest UK court now interprets that intent, and (c) the legitimacy that comes from political recognition of devolution.

“Legal authority […] is empty without general acceptance in a society of the decisions taken by those in authority. Without the backing of political power this cannot practically be achieved.” [1]

Overall, it seems to me that Neil MacCormick’s view on the relationship between legal authority and political authority supports Campbell’s belief that we cannot simply judge the proposed Scotland Bill according to either positive law, or on pre-devolution and Diceyan understandings of Parliamentary sovereignty. We must also recognise that as the constitutional ground continues to move below our feet following the independence referendum, how we judge the ‘legal effects’ may depend much more on what is seen as politically legitimate than we have perhaps been used to before in the UK.

David Miles is a Carnegie Scholar researching Anglo-American and German constitutionalism and is an Associate Fellow at the Centre for Global Constitutionalism. He is also Managing Editor of Global Politics Magazine and is a contributor for the Scotsman, the Daily Beast and Huffington Post.